Success Lane Development Ltd v. Fergurson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel

DCCJ 2191/2023

[2024] HKDC 342

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2191 OF 2023

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DECISION

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1.This is the plaintiff’s application (“the Application”) for leave to appeal against the decision of this court (“the Decision”) during the hearing dated 29 September 2023 (“the Hearing”) in:

(i)  dismissing the plaintiff’s application for interlocutory injunction;

(ii)  the plaintiff’s application for stay of execution of the order made by Deputy District Judge Michelle Lam dated 25 September 2023; and

(iii)  costs be to the defendant on an indemnity basis.

2.The plaintiff also sought to have an oral hearing for the Application but this court has directed that it should be dealt with by way of paper disposal with various directions for filing and serving affirmations and skeleton arguments for both parties.

3.The plaintiff has later sought for a time extension for filing and serving her skeleton argument (for 28 days from the original deadline of 12 January 2024) on the basis that this court only handed down the written decision on 9 January 2024 (the “Written Decision”).

4.The time extension was refused because the Decision was orally handed down during the hearing on 29 September 2023 in the attendance of the plaintiff’s director, Madam Yung Mei Chun Jessie (“Madam Yung”). Further, this court has provided a transcript of the hearing to Madam Yung. It was only upon her request that a further Written Decision was prepared by the court which was based on the transcript.

5.Therefore, there is no question that Madam Yung, and thus the plaintiff, has all along been aware of the reasoning of the Decision.

6.At the end of the said hearing, this court has put down a marker regarding the litigation conduct of the plaintiff in deliberately wasting time and costs in legal procedures and this is perhaps another example of such.

Legal Principles

7.The legal principles for granting leave to appeal is trite: section 63A (2) of the District Court Ordinance, Cap. 336 stated:

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

8.As for what constitutes “a reasonable prospect of success”, Hon Fok JA (as he then was) stated in the Court of Appeal judgment of KNM v HTF and others, HCMP 288/2011, under paragraph 9:

“The relevant test of whether an appeal has a reasonable prospect of success…therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.”

9.Paragraph 59/0/54 of the Hong Kong Civil procedure 2024 Vol 1 further elaborated as follows:

“There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it can be shown that he exercised his discretion under a mistake of law…or in disregard of principle…or under a misapprehension as to the facts…or that he took into account irrelevant matters…or failed to exercise his discretion…or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible”.

10.In short, it is well established that an appeal must show that the decision was based upon a mistake in the application of law or a mistake in finding of facts.

11.For the latter, it is not enough to show that the judge merely exercise his discretion upon reasonable disagreements of certain arguments or evidence placed before him, but that his finding was totally outside the ambit of any possible reasonable disagreement.

12.In this regard, Hon Fok JA (as he then was) has also put it succinctly in paragraph 23 of the judgment in the same KNM case:

“By way of preface, however, it is pertinent to note that the proposed grounds of appeal all seek to attack findings of fact made by the Judge after an evaluation of the evidence adduced before him. In the circumstances, unless the applicant can show that the Judge misunderstood the evidence, or failed to appreciate its effect, or overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, this court will not interfere with those findings of fact.”

13.In other words, a proper ground of appeal on facts cannot be based on the mere observation that the judge did not agree with some arguments or evidence raised by the losing party in the original hearing: it must be shown that all the evidence presented before the Judge “should have compelled him to a different conclusion”. An appeal is not an opportunity for the losing party to rehash the same arguments in the vague hope that, someday somehow, another judge may come to a different conclusion.

Considerations

14.The background of this case is stated in the Written Decision and needed not be repeated here.

15.The Decision was based upon:

(i)  the plaintiff has abused the ex-parte procedure (Written Decision paragraphs 4-29, 34-36);

(ii)  there was no material change of circumstances since the plaintiff’s previous injunction application (Written Decision paragraphs 30-32);

(iii)  there is no evidence that the plaintiff could pay damages in the event that the injunction was wrongly granted (Written Decision paragraph 33); and

(iv)  The Stay of Execution was dismissed for want of jurisdiction (Written Decision paragraphs 37-38)

16.The “initial grounds of appeal” were listed in the 8^th Affirmation of Yung Mei Chun Jessie.

17.Grounds 1-9, 13-18 are all rehashes of the same arguments raised before this Court in the Hearing. The Court has considered all these arguments and has given various reasons in the Decision.

18.For example, many of the grounds concern the same arguments for the alleged “urgency” / “material change of circumstances” which required another ex-parte application for an injunction even before the decision in a previous (and very similar: see Written Decision paragraph 7) application was handed down.

19.These arguments have already been dismissed entirely by this court based upon, amongst others, an analysis of the correspondence between the parties (Written Decision paragraphs 12-29). In conclusion, the court found that the plaintiff was not really concerned with any alleged urgency / potential damage to the stored goods etc. but instead took to deliberately raising unreasonable arguments with the defendant (Written Decision paragraphs 34-36). There was, therefore, no justification for taking out the ex-parte application under the circumstances except, perhaps, to cause more time and costs to be wasted.

20.These were finding of facts by the court and the plaintiff failed to identify any error in such, let alone putting forward any grounds to show that the finding was plainly wrong and unreasonable given all the evidence before the court.

21.In the remaining grounds, grounds 10-12 concern allegations against the defendant of improper use of the car park, improper claim of storage fees and motive of such. I see no relevance of such in an ex-parte injunction application made under the grounds of alleged urgency and change of circumstances etc.

22.Grounds 19 and 20 concern with some vague accusations of judicial bias without any particulars. I see no basis for such accusations and, further, the plaintiff failed to show how such have caused any specific mistakes in the Decision.

23.In conclusion, the court is not satisfied that the appeal has a reasonable prospect of success. Further, the plaintiff has not shown that there was some other reason in the interests of justice why the appeal should be heard.

24.I will accordingly dismiss the plaintiff’s application and award costs to the defendant summarily assessed at HK$50,000 (inclusive of Counsel Fee item E1 of HK$24,000) to be paid forthwith.

25.This court has already put down a marker criticising the plaintiff’s litigation conduct. It is regrettable that the plaintiff (and its director Madam Yung) chose to continue to behave in such manner. The court will now give them a proper warning that should such conduct persist, further appropriate directions may be considered.

The plaintiff appeared in person

Mr Cedric Yeung, instructed by Messrs Y T Chan & Co., for the defendant